Gonzalez v. Option One Mortg. Corp., 3:12 - CV - 1470 (CSH)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Writing for the CourtCHARLES S. HAIGHT
Docket NumberNo. 3:12 - CV - 1470 (CSH),3:12 - CV - 1470 (CSH)
PartiesLUIS GONZALEZ and SONIA GONZALEZ, Plaintiffs, v. OPTION ONE MORTGAGE CORPORATION; AMERICAN HOME MORTGAGE SERVICING, INC.; DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Soundview Home Loan Trust 2005-OPT3 Asset-Backed Certificates, Series 2005 OPT3; BENJAMIN T. STASKIEWICZ, ESQ.; S. BRUCE FAIR, ESQ.; VALERIE NICOLE KLOECKER; and HUNT LEIBERT JACOBSON, P.C.; Defendants.
Decision Date03 June 2014

LUIS GONZALEZ and SONIA GONZALEZ, Plaintiffs,
v.
OPTION ONE MORTGAGE CORPORATION; AMERICAN HOME MORTGAGE SERVICING, INC.;
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee for Soundview Home Loan Trust 2005-OPT3 Asset-Backed Certificates,
Series 2005 OPT3; BENJAMIN T. STASKIEWICZ, ESQ.; S. BRUCE FAIR, ESQ.; VALERIE NICOLE KLOECKER;
and HUNT LEIBERT JACOBSON, P.C.; Defendants.

No. 3:12 - CV - 1470 (CSH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

Dated: June 3, 2014


RULING ON DEFENDANTS' MOTIONS TO DISMISS

HAIGHT, Senior District Judge:

I. INTRODUCTION AND FACTUAL BACKGROUND

Pro se plaintiffs Luis Gonzalez and Sonia Gonzalez ("Plaintiffs") bring their self-styled "Human Rights Complaint" against defendant mortgage companies, bank, and counsel regarding a mortgage on Plaintiffs' property located at 54 Abbe Road, East Windsor, Connecticut (the "East Windsor Property"). As described more fully below, pending before this Court are three motions by Defendants to dismiss Plaintiffs' Complaint. See Doc. 4, 16, & 22.

In brief, on July 29, 2005, Plaintiff Luis Gonzalez signed a note (the "Note") promising to pay the lender, Option One Mortgage Corporation ("Option One"), $258,750.000. Plaintiffs

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executed a Mortgage in favor of Option One, relating to the East Windsor Property, to secure the Note.1 Plaintiffs thereafter defaulted on this Mortgage Loan. As a result, Deutsche Bank National Trust Company ("Deutsche Bank"), as trustee and holder of the Note, accelerated the balance due.

On May 19, 2010, Deutsche Bank, by and through its counsel, Hunt Leibert Jacobsen, PC, initiated a foreclosure action against Plaintiffs in Connecticut Superior Court, Judicial District of Hartford at Hartford, Deutsche Bank National Trust Co. v. Gonzalez, No. HHD-CV-07-6001411-S. Defendant Deutsche Bank obtained a judgment of strict foreclosure in that action on July 28, 2011.2 Doc. 23, Ex. A. On October 31, 2011, the state court issued an Execution of Ejectment. Id. (Doc. 135.00 on state court docket). A Certificate of Foreclosure was recorded on November 23, 2011. Doc. 23, Ex. B.

Plaintiffs thereafter commenced an action in state court, seeking to avoid foreclosure, regarding the Mortgage Loan on the East Windsor Property against Option One, American Home Mortgage Servicing, Inc. ("American Home Mortgage"), Deutsche Bank, the Hunt Leibert Jacobson law firm, and two individual attorneys in that firm, Benjamin Staskiewicz, and S. Bruce Fair. See Gonzalez v. Option One Mortgage Corp., Case No. HHD-CV-11-5035882-S. In that action, alleging fraud and mistreatment with respect to the Mortgage Loan, Defendants Hunt Leibert Jacobson, PC, and Attorneys Benjamin Staskiewicz and S. Bruce Fair (collectively the "Hunt Leibert Defendants"),

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filed motions to strike [Doc. 105] and for judgment [Doc. 107]. See Doc. 4-5 (docket sheet of state action). On March 5, 2012, the court granted the motion to strike [Doc. 105.86] ; and on August 9, 2012, the court granted the motion for judgment in favor of the Hunt Leibert Defendants [Doc. 107.86]. Option One thereafter filed a motion to dismiss [Doc. 144], which was granted on September 10, 2013; and judgment of dismissal as to Option One entered on that date [Doc. 144.87]. The state court ultimately entered a general "Judgment Without Trial" for defendants [Doc. 154.87, dated 9/10/2013].

On October 16, 2012, Plaintiffs brought the present claim in federal court against Defendants Option One, American Home Mortgage, Deutsche Bank, the Hunt Leibert Defendants, and Attorney Valerie Nicole Kloecker (currently known as Valerie N. Doble) (collectively "Defendants").3 Plaintiffs' Complaint broadly includes, inter alia, claims arising pursuant to "United Nations['] declaration of Indigenous Peoples Autonomy," "mortgage fraud and foreclosure," "conspiracy" of "national banks and loaning services . . . to commit fraud" against the Plaintiffs, denial of constitutional rights to "life[,] liberty[,] and the pursuit of happiness," and various "torts." See Doc. 1, p. 1 (summarizing claims). It is unclear what specific relief Plaintiffs seek. However, it would appear that, at the very least, they seek to obtain relief from their obligations under the Mortgage Loan at issue and to avoid foreclosure on the East Windsor Property.

Pending before the Court are Defendants' three Motions to Dismiss Plaintiff's action pursuant

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to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(5). Doc. 4, 16 & 22.4 With respect to the Hunt Leibert Defendants, they move to dismiss Plaintiffs' action pursuant to Rules 12(b)(1) and 12(b)(6), arguing, respectively, that the Court has no subject matter jurisdiction over this action and the Complaint fails to state a claim upon with relief can be granted. Doc. 4. Similarly, the other Defendants - American Home Mortgage, Deutsche Bank, Kloecker (currently Doble), and Option One - request the Court to dismiss Plaintiffs' action for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. In addition, this group of Defendants argues for dismissal due to insufficient service of process pursuant to Fed. R. Civ. P. 4 and 12(b)(5), and thus lack of personal jurisdiction. Because the three motions to dismiss substantively assert overlapping grounds for dismissal, the Court will address and resolve all three motions herein.

II. STANDARDS OF REVIEW

A. Rule 12(b)(1) - lack of subject matter jurisdiction

"The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction and under 12(b)(6) for failure to state a claim are 'substantively identical.'" Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d. Cir.2003), cert. denied, 540 U.S. 1012 (2003). "In deciding both types of motions, the Court 'must accept all factual allegations in the complaint as true, and draw inferences from those allegations in the light most favorable to the plaintiff.'" Hailey v. Conn., No. 3:10-cv-1787 (VLB), 2011 WL 6209748, at *2 (D.Conn. Dec. 14, 2011) (quoting In

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re AIG Advisor Group Sec. Litig., 309 F. App'x 495, 497 (2d Cir. 2009)).

On a Rule 12(b)(1) motion, however, the party who invokes the Court's jurisdiction bears the burden of proof to demonstrate that subject matter jurisdiction exists, whereas the movant bears the burden of proof on a motion to dismiss under Rule 12(b)(6). Lerner, 318 F.3d at 128 (citing Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir. 1994)).

"A case is properly dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it."5 O& G Industries, Inc. v. Aon Risk Servs. Northeast, Inc., 922 F.Supp. 2d 257, 262 (D.Conn. 2013) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). See also Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000) ("If subject matter jurisdiction is lacking, the action must be dismissed."). "Without jurisdiction the court cannot proceed at all in any cause" because "[j]urisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998) (quoting Exparte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868)). Unlike personal jurisdiction, "subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte." Lyndonville Sav. Bank & Trust Co., 211 F.3d at 700.

In resolving a motion to dismiss for lack of subject matter jurisdiction, the court "must determine whether or not the factual predicate for subject matter exists." Tilley v. Anixter Inc., 283 F.Supp.2d 729, 733 (D.Conn.2003) (citation omitted). The court accepts as true all material

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allegations in the complaint," but refrains from "drawing from the pleadings inferences favorable to the party asserting [subject matter jurisdiction]," Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). See also Norton v. Larney, 266 U.S. 511, 515 (1925) ("It is quite true that the jurisdiction of a federal court must affirmatively and distinctly appear and cannot be helped by presumptions or by argumentative inferences drawn from the pleadings.").

Put simply, on a Rule 12(b)(1) motion to dismiss, the plaintiff must establish by a preponderance of the evidence that the court has subject matter jurisdiction over the complaint. Moreover, the plaintiff may present proof of jurisdictional facts by affidavit or other competent evidence for the court to resolve such a motion. See, e.g., Zappia Middle East Constr. Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000) ("On a Rule 12(b)(1) motion challenging the district court's subject matter jurisdiction, the court may resolve the disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as affidavits, and if necessary, hold an evidentiary hearing."); Giammatteo v. Newton, 452 F. App'x 24, 27 (2d Cir. 2011) ("In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court may refer to and rely on competent evidence outside the pleadings."); ...

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